Date:22/05/2011 URL:
http://www.thehindu.com/2011/05/22/stories/2011052256130100.htm
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Ruling on eligibility for alternative job
Staff Reporter
Choice will be entirely within the domain of employers: HC
MADURAI: A government employee who acquires a physical disability during the
course of his service and becomes eligible for alternative employment under
Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 cannot pick and choose the nature
of work he must be provided with, the Madras High Court has said.
Justices K. Suguna and A. Arumughaswamy made the observation while disposing of
a writ appeal filed by Tamil Nadu State Transport Corporation (TNSTC) against
an order passed by a single judge to provide alternative employment to an
individual suffering from poor eyesight.
The judges held that it was completely within the domain of the employer to
select the nature of work to be given to an employee under Section 47.
During the hearing of the appeal, the TNSTC had agreed to employ G.
Balakrishnan, an Office Assistant who was discharged from service in January
2002 due
to poor eyesight, as a labourer for re-caning of office furniture.
However, the employee insisted that he should be provided an alternative job
only in the canteen as the job of furniture caning was a skilled work.
Rejecting his plea, the judges recorded the TNSTC's submission that it would
give 15 days training to Mr. Balakrishnan on furniture caning and said: "The
choice is always with the appellant transport corporation. We are of the view
that the ends of justice would be met by directing the appellant transport
corporation to provide alternative employment of their choice to the
respondent."
Earlier, the judges rejected the main contention raised by the TNSTC that the
employee was not at all eligible for alternative employment as he had filed
a writ petition only in 2007, five years after his discharge from service on
account of medical invalidation and that too after having received all his
terminal benefits, including gratuity and provident fund.
Writing the judgement for the Bench, Mr. Justice Arumughaswamy recalled that
the Supreme Court, in a decision rendered in 2008, had categorically stated
that a claim made under Section 47 could not be rejected on the ground of
laches (delay) as it was the bounden duty of the employer to apprise an employee
of his legal rights before discharging him from service.
"If a workman comes with an application, without being aware of his legal
rights, it is the duty of the transport corporation to explain the position. It
could have immediately provided alternative employment. In that case, the
question of non-employment for more than five years and thereafter filing of
the writ petition for re-employment and payment of back wages would not have
arisen at all," the judge added.
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